OpenUCT :: Browsing by Subject "Commercial Law"

Browsing by Subject "Commercial Law"

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Open Access
A comparative analysis of shareholders' appraisal rights in Nigeria and South Africa
(2019) Eniola, Abimbola; Yeats, Jacqueline
First, this study stems from the urge to bring clarity as to whether, in Nigeria, there is a statutory framework based on which shareholders can seek appraisal in relation to their shares at any point in time. This is significant in that the corporate statutes in both South Africa and Nigeria provide for similar mechanisms for the protection of minority shareholders in almost every respect including the prejudicial and oppression remedy, derivative actions, squeeze-outs and so on, excepting the appraisal rights. Whilst there is clarity as to the existence of the appraisal remedy provision in South Africa’s corporate statute, the same cannot be said of Nigeria’s corporate statute. Consequently, the primary goal of this study is to identify if there is a framework for the exercise of appraisal remedy in Nigeria’s corporate statute. In carrying out this study, this dissertation examines the various components of the appraisal right provision in South Africa in detail. This helps to provide an understanding around the structure and the rationale behind a standard appraisal right provision. It is based on this understanding that certain pre-identified provisions in Nigeria’s corporate statutes will be investigated with a view to identifying potential statutory framework bearing semblance to South Africa’s appraisal right provision.
Open Access
A comparative study of China's foreign direct investment in Africa: regulation, policy, and legal cooperation
(2023) Lefifi, Tebogo; Ordor, Ada; Kalula Evance
A new era of Africa-China legal cooperation in Foreign Direct Investments (FDI) was inaugurated following the successful founding of The Forum on China Africa Cooperation (FOCAC) in 2000. In 2015, China became a capital exporter and adopted a new global strategy to reverse the hegemony comprising norm-making and advising law reforms in developing countries. However, a comprehensive approach is still lacking to determining and understanding the potential impact and influence of China's outbound FDI (OFDI) policy, laws and regulations on Africa's economic development agenda and legal environment. Previous research has interpreted China's increasing outward foreign direct investment OFDI as a byproduct of China's market- or resource-seeking agenda and failed to consider the legal aspects of the relationship. Contrarily, this study argues that China's OFDI influence introduces a novel type of south-south legal transplant that will shape prospective African legislative initiatives, ideologies, and norms. By examining China' legal transplant experience and FDI governance model ideology, this research aims to provide a comprehensive understanding of China's influence on Africa's future legal reforms. The analysis explicitly explores Africa's transplant of China's cyber sovereignty governance model. The study utilises a desktop research study methods using a combination of primary and secondary sources. The data is gathered from research from various sources in official government websites, action plans documents, academic literature, and case studies. A comparative analysis of the benefits and drawbacks of China's and Africa's experiences with FDI regulation and legal transplant are key considerations to the study. The findings of the study reveal and highlight the benefits and challenges of legal cooperation through OFDI and present recommendations for the development of laws with Africa-China characteristics. The research will guide Africa's policy response to regulating Chinese investments in the Continent and guide lawmakers in transplanting laws from China.
Open Access
A configuration of trade regimes in Eastern and Southern Africa region: Implication for deeper integration and WTO compatibility
(2003) Busieka, Wycliffe M; Kalula, Evance
This work has examined the implication the proliferation of identical econOITllC groupings portends for the east and southern Africa region. The thrust of the study here has been to interface and interrogate the incidence of the configuration of integration regimes in the east and southern Africa region. The work has investigated the question as to whether the proliferation of trade regimes has prepared a fertile ground for greater and deeper integration in the region. The thesis has also interrogated the proposition that such proliferation is the very antithesis of the desired goal to promote trade harmonization and reach out for deeper integration in the region. Importantly this work has ventured to query the confluence of identical trade regimes in view of the compatibility imperative as enshrined in the wro legal framework. We have examined the implication this configuration of integration regimes portends for the wro disciplines. This work conunenced with an extensive examination of current works on regional integration regimes in general and integration initiatives within the east and southern Africa region in particular. The interrogation exercise was premised on works, both economic surveys and legal treatises undertaken on the recently concluded EU-SA free trade agreement, the SADC Trade Protocol, the COMESA Treaty and the Cotonou Agreement. The actual texts of these instruments form the bulk of the sources. We note that without exceptlon, significant and to that extent costly restructuring programs will have to be undertaken by States in the east and southern Africa region in response to the disruptive EU-SA trade partnership. We have established that these integration regime scores well on the imperative of wro compatibility. We gather that the present wro structures are not malleable enough for the cash strapped sub-Saharan Africa trade regimes to reconfigure themselves in such a way as to deepen the integration agenda. We have urged for more flexibility in the wro framework on this score to augment integration processes currently crowding the regional landscape. Mataywa W Busieka - 10th July, 2003
Open Access
A Critical and Comparative Analysis on the Effect of Business Rescue on Creditors’ Rights against Sureties
(2018) Tsangarakis, Andreas; Hutchison, Andrew
Business rescue proceedings have been introduced into South African company law under chapter 6 of the Companies Act 71 of 2008. The United States Chapter 11 bankruptcy model was closely consulted by the legislature when drafting chapter 6. Further to this and although business rescue has been generally well received, there have been legal issues which have arisen in the interpretation of chapter 6. In particular, the issue of creditors' rights against third party sureties of financially distressed companies continues to fall under the spotlight which, in tum, has caused a ripple of commercial uncertainty to filter through to creditors. This issue will be investigated with comparative reference to the position in the United States. In doing so, a critical analysis will be undertaken of the procedures and processes in both of these jurisdictions, whereafter a comparative analysis will be presented. It will be advocated that although the essential difference between the two jurisdictions is the United States' legislative regulation on this issue, South African courts have correctly decided on creditors' rights against third party sureties. Unlike in the United States where conflicting decisions have been delivered, commercial certainty on this issue does in fact exist in South Africa notwithstanding the lack of statutory regulation under the Companies Act. It will be further advocated that although there is potential for this issue to be development under the South African common law when having regard to the decisions in the United States, caution is to be exercised as such development may generate commercial uncertainty.
Open Access
A critical assessment of the conciliation hearing in Germany and South Africa from a comparative point of view
(2022) Ilies, Ines; Rycroft, Alan
This work gives an overview of the resolution of individual labour disputes through conciliation in Germany and South Africa. In a rapidly evolving labour environment, parties have an increased interest in obtaining legal clarity on the outcome of a dispute. Neither employers nor employees can afford delays. Access to justice is essential. An amicable settlement serves this aim and is likely to bring the dispute to a swift end in a speedy and inexpensive proceeding. Thus Germany and South Africa both developed a mechanism of mandatory conciliation as the starting point of every individual rights dispute, which aims to grant easy and fast access to justice at a low cost. In South Africa the Commission for Conciliation, Mediation and Arbitration (CCMA) has been established to resolve individual labour disputes through conciliation. In Germany a preliminary conciliation hearing takes place before the chairperson in the Labour Court of first instance. This work aims to critically assess the conciliation procedure in both countries, illustrate similarities and differences and suggest improvements. The question that arises is: what are the significant elements in the conciliation procedure of both countries and how do these elements impact the process and success rate? This research attempts to answer this question.
Open Access
A Discussion On The African Continental Free Trade Area And Competition
(2019) Nkomo, Charity; Ismail, Faziel
According to Olasupo Owoeye, as the world is becoming increasingly globalized, it is difficult for some regions, for example, the African continent, to become competitive in the global market because of their overly protectionist measures1 . Former WTO Director, Pascal Lamy, also noted that Africa should no longer rely on external demand for its goods and services to support its growth but must take steps to accelerate regional integration, as it remains the least developed continent with the highest number of least developed countries in the world2 . This explains the formation of the African Continental Free Trade Area by the African Union members; whose main objective is to boost intra African trade and create a single continental market for goods and services. The African Continental Free Trade Area is expected to enhance competitiveness at both the industry and enterprise level through exploitation of opportunities for scale production, continental market access and better allocation of resources. 3 The AfCFTA is also expected to facilitate a better integration of the African economy into the global market, thus contributing to sustainable economic growth, poverty reduction, enhanced foreign direct investment and employment creation in Africa. It is also considered to be a steppingstone towards two of the deeper integration stages envisaged in the Abuja Treaty of 1991, namely the creation of a continental customs union by 2019 and an African Economic Community (AEC) by 20284 . The AfCFTA can however pose some challenges to the signatory countries as through trade liberalization, domestic markets will become open to foreign competition and susceptible to anti-competitive practices originating outside their national borders. These include crossborder competition concerns, international cartels, mergers and acquisitions that risk monopolizing or creating abuse of dominance in the internal market5 . Some firms may gain market power and abuse their dominance through taking advantage of the economies of scale. Hence the need for the member countries, not only to dismantle trade barriers but also to adopt complementary competition policy to ensure a smooth transition and to benefit from gaining access to new markets. As was stated by Ernst-Ulrich Petersmann, competition laws are important to the preservation of economic freedom and the free trade system as is with the Bill of Rights to the protection of fundamental freedoms6 . The competition and trade policies are both based on the conviction that free trade is a means of maximizing the economic welfare of trading nations through the efficient allocation of resources. The two policies therefore complement each other as without competition, the African Continental Free Trade Area lacks legitimacy because private restraints to trade will undermine its achievement. Hence the negotiations on competition which are supposed to take place beginning of 2019 by the African Union countries who have signed the African Continental Free Trade Area. The research will therefore discuss the formation of the African Continental Free Trade Area, discuss the relationship between trade and competition and will also scrutinize the likely positive and negative impacts of the African Continental Free Trade Area vis a vis competition. Reference will also be made to other regional agreements on competition linked with regional efforts to set up free trade zones, particularly, the European Union where regional integration has been used to enhance economic growth and the useful lessons that can be learnt from those.
Open Access
A question on whether competition authorities are the appropriate place to consider public interest considerations in the assessment of mergers in competition law?
(2021) Dlukulu, Babalwa Lumka; Davis, Dennis
This Dissertation examines the question of whether competition authorities are the appropriate place to consider public interest considerations in the assessment of mergers in competition law. The Dissertation does this by looking at the South African merger review process in the Competition Act, 1998 in comparison to other more developed economic jurisdiction such as the United Kingdom and the United States of America in examining the tension and criticism around the incorporation and balancing of public interest considerations and core economic consideration under the same competition law merger review process and competition authority. The South African merger review provisions as well as watershed cases such as the Wal-Mart Stores Inc and Massmart Holdings Ltd case, are considered. The Dissertation establishes that the concerns are legitimate around the potential muddying of the competition analysis with public interest considerations. Some of the concerns which arise include that: a) public interest considerations can be broad thereby creating sense of uncertainty for both parties to a merger, as well as prospective investors; b) public interest traverses areas concerning other stakeholders such as government or organised groups such as labour or business, thereby creating opportunity for interference, whether political or otherwise in the work of competition authorities; c) can increase the time spent in merger review because of the challenges in the types of evidence required to prove public interest impact; d) and/ or that competition authority officials may lack capacity and expertise to consider the public interest consideration. The Dissertation concludes that notwithstanding, the South African approach in incorporating public interest into the merger review process is legitimated by the unique socio-economic history of South Africa, and that the concerns raised are sufficiently mitigated and a delicate balance struck between core economic considerations and public interest in merger review. Competition Authorities are capable of balancing core competition concerns and public interest considerations, provided that Competition Authorities are independent; steps are taken to clarify the scope of the public interest concerns; public interest considerations are looked at within a limited scope of merger specificity; and further clarity and transparency is provided through open and transparent hearings and guidelines, amongst other features.
Open Access
A tentative proposal for mediation in the Zambian Family Court
(2021) Chisompola, Lois; Barratt, Amanda
These changes have set stage for the development of family law in Zambia as well as the growth of alternative dispute resolution, particularly, mediation. They also bring to the forefront the opportunity and challenge of re-envisioning what a court system should look like. This study seeks to assess how each of these changes can fit together into one comprehensive system for a Family Court model.
Open Access
Access to work for disabled persons in South Africa : the intersections of social understandings of disability, substantive equality and access to social security
(2015) Du Plessis, Meryl Candice; Rycroft, Alan
This thesis examines possible synergies and points of friction between understandings of disability that emphasise its social contingency and jurisprudential debates on substantive equality and access to social security in the context of the promotion of access to work for disabled persons in South Africa. In consequence of an analysis of theoretical debates in the field of disability studies and how these find application in the sphere of employment equity law, it is concluded that, while social understandings of disability mostly focus on structural changes that would see people with disabilities who can and want to work gain access to such work, the positive obligations imposed on employers and the state in terms of equality rights and employment equity legislation are of limited depth and breadth. It is proposed that one potential course of action to address the limited scope of equality law would be to emphasise the state's obligations in terms of socio-economic rights where these rights are relevant to work inequality. Particular emphasis is placed on how the interpretation and application of the right to access to social security could be used to activate government's duties in respect of unemployment protection and work creation. The conclusion reached is that while this strategy poses risks and has its limitations, it can be used to improve information gathering in respect of disabled work seekers that will aid planning and enforcement; to facilitate support for disabled work seekers who experience discrimination; to compel government to improve the implementation and enforcement of employment equity laws in respect of disabled work applicants; to catalyse a holistic approach to social security that considers the interrelationship between social assistance and promoting unemployment protection for disabled persons who are willing and able to work; and to provide different forms of support to disabled people who do not operate in the formal labour market, but who can and do perform work that falls outside the scope of traditional labour market regulation.
Open Access
The acquisition of a business - is a statutory merger in terms of section 113 of the Companies Act 71 of 2008 preferable to a common law sale?
(2015) Weyers, Marius; Yeats, Jacqueline
Two or more companies may decide that their businesses should be combined for a number of reasons. This may, for example, be done in order for the companies to have access to new markets, to increase their market share, to increase their profitability by reducing the inefficiencies involved in the running of two or more companies in the same business area or to acquire technology, infrastructure, expertise and/or skill in new practice areas. Before the advent of the Companies Act 71 of 2008 South African law did not make provision for 'mergers' as that term is understood in many other jurisdictions. South African law did not recognise any mechanism by which one entity could be combined with another in terms of a statutory process, also referred to as a 'consolidation' in certain jurisdictions. One of the most significant changes proposed for the Companies Act was to make provision for a legal process by which companies could be combined. The concept of the amalgamation or merger of companies was accordingly introduced into our law, so as to enhance the efficiency of business combinations and to promote flexibility in this regard. It is significant that the statutory process of amalgamating or merging companies was adopted in addition to the existing forms of business combinations and/or acquisitions, such as the sale of a business as a going concern, the common law scheme of arrangement and offers to acquire the shares and/or other securities in a company. Companies therefore now have at their disposal an additional mechanism by which to engage in business combinations and/or acquisitions, and are required to consider in each proposed transaction the relevant circumstances to determine which mechanism will be most effective in giving effect to that transaction. This is in line with the move in the Companies Act towards self-regulation and the object of the Companies Act to encourage entrepreneurship. The main purpose of this work is to compare the requirements for, manner of implementation and consequences of an amalgamation or merger as contemplated in the Companies Act, referred to herein as a 'statutory merger', with that of the common law sale of a business.
Open Access
The adequacy of the Tanzanian law on e-commerce and e-contracting : possible solutions to be found in international models and South African legislation
(2011) Nangela, Deo John; Bennett, Thomas W
This dissertation examines Tanzania’s legal framework in the light of the modern information and communication technologies, especially the Internet and e-commerce. The main goal is to assess the adequacy of the existing law and to provide recommendations for reforms that will reflect the borderless nature of e-contracts. These reforms must ensure the certainty and predictability needed for successful cross-border commerce. Achievement of these aims will build confidence and trust on the part of business entities and consumers, and, in addition, will enhance free trade, strengthen the growing market-based economy, and integrate Tanzania into the global economy.
Open Access
Advancing and protecting the interests of creditors and employees under the Companies Act 71 of 2008
(2012) Chokuda, Batanai Tirivamwe; Wiese, Tobias
This dissertation seeks to assess the impact the new Companies Act will have on the socio-economic transformation of the South African society and point out areas where corporate law can do more to help bring about this transformation. It focuses on creditors and employees as key corporate constituencies whose interests the board of directors have to constantly consider in making decisions. It argues that an expansive approach to corporate governance that includes other corporate constituencies, not only the shareholders, is the best way to harness the impressive wealth generating capacity of the corporate form to bring about socio-economic transformation in South Africa.
Open Access
AfCFTA and Digitalisation: The Role of Trade Facilitation Measures through the Electronic Single Window (ESW) in improving Intra-Africa Trade
(2022) Omari, Marilyn Yoha; Ordor, Ada; Amadi, Victor
International trade has increased significantly over the years and to enable this trend of increased volume of trade, there is a core focus on trade facilitation. Furthermore, customs play a key role in the movement of goods and have come to the spotlight as key role players in trade facilitation efforts. However, the problem that exists in modern international trends, specifically in Africa, is that the present customs administrations are inefficient to combat the increase in trade volumes and ensuring trade facilitation efforts are sufficiently implemented. With the current development of the African Continental Free Trade Area (AfCFTA) there is a potential for increased inter and intra-Africa trade and to strengthen regional integration. With such developments, African states must create an appropriate environment to advance and realise the trade objectives of AfCFTA. This thesis therefore aims to argue for an improved trading environment in Africa through a digitalised customs reformative tool, such as the Electronic Single Window (ESW), to ensure some beneficiation under the AfCFTA. The ESW is a trade facilitation tool aimed at easing and improving trade, and as this thesis argues, it can be a significant tool to realise the objectives of the AfCFTA. This thesis carried out desktop research based on literature to assess and provide the usefulness of the ESW in improving inter and intra-Africa trade. This was done by providing for key regional theories and approaches to integration efforts, assessing international trade facilitation regulatory frameworks, providing for the conditions of customs in Africa, the analysis of the ESW, and the implementation of the ESW in two African countries. Conclusively, this paper found that African states have several international and regional commitments to reform their customs and facilitate trade, and importantly, with the current era of digitalisation and a sound trade regulatory environment, the implementation of the ESW is achievable. Highlighting that digitalisation and a sound legal environment maximise the benefits of the ESW, which help improve inter and intra-Africa trade.
Open Access
Affected persons in business rescue proceedings : has a balance been struck?
(2015) Zwane, Muziwakhe Simphiwe; Yeats, Jacqueline
The Companies Act of 2008 (the Act) has revolutionised the corporate law landscape in South Africa. The Act has been drafted with the specific intention of promoting access to the economy and of ensuring that cumbersome and costly procedures are (to a large extent) a thing of the past. These objects are a necessity when striving to ensure that South Africa's alarming inequality is abated. One of the central features of the 2008 Act is the introduction of business rescue, a procedure which represents a blatant attempt at striving to preserve ailing companies. The Act states that one of the main objects with regards to business rescue is ensuring that the procedure balances the competing interests involved. The purpose of this thesis therefore is to consider to what extent the 2008 Act has been able to achieve this. This will be done by analysing the rights given to employees, shareholders and creditors. This thesis will argue that though the procedure is a step in the right direction, it has failed to strike a proper balance by overly empowering employees and conversely leaving shareholders somewhat impotent. This thesis will also argue that some of the mechanisms employed, though they may be admirable in what they strive to achieve, leave far too much doubt as to their practicality. The overall conclusion reached is that a major overhaul is not required in order to rid this much needed procedure of its flaws.
Open Access
An analysis and critique of secured lending in South African law, including cession in securitatem debiti as a means to secure the repayment of loans for consumption
(2022) Kariem, Adnaan; Gutuza, Tracy; Hutchison, Dale
The thesis critiques South African secured lending laws by examining the contractual basis on which money is loaned and its repayment is secured, focusing on syndicated loans. The loan of money constitutes a loan for consumption in terms whereof the lender passes legal title to its money to the borrower, who must return the same number of units in the same currency, with or without interest. The law on loans for consumption is based on Roman law and Roman-Dutch law. The thesis analyses the principles whereby senior and mezzanine lenders, acting in a syndicate, lend money to a borrower in a loan for consumption where the repayments and security rights are ranked. The internationalisation of standard-form loan agreements is discussed, and some English law lessons are analysed. The principles that govern the legal nature, purpose and function of security rights in rem and in personam, and specifically security rights in syndicated loans, are analysed. In law, a security right is created when an asset is appropriated to a debt as contemplated by the common law and the Insolvency Act 24 of 1936. Security rights must be accessory to a valid principal debt. Insolvency law treats cessionaries as secured creditors and holders of guarantees as concurrent creditors. The principles of the law of cession, and the pledge and cession in securitatem debiti of rights in personam, including the theories that underly it, namely, the pactum fiduciae theory and the pledge theory, found security in personal rights and are measured against the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Secured Transactions, Vienna, 2019, the English law on charges and Article 9 of the American Uniform Commercial Code. A number of deficiencies and inconsistencies in our security rights laws are identified, including incongruency, the absence of a coherent and uniform security rights system, and adverse insolvency law consequences for the cedent on the cessionary's insolvency arise from applying the pactum fiduciae theory. I conclude that the time is opportune to codify and reform South African law on secured lending to remedy the identified deficiencies and inconsistencies.
Open Access
An analysis of the role of AfCFTA investment facilitation protocol and strategies in the promotion of sustainable development in SADC Developing Countries: a comparative study
(2023) Kandjii, Nongee; Ismail, Faizel
The Southern African Development Community (SADC), like other African Regional Economic Communities (RECs), was created in an effort to build beyond the economic, social, political and environmental fragmentation and damage brought about by colonial powers and the remnants of their control during the earliest post-colonial eras. With these integration efforts came the new-found need to address common regional problems such as abject poverty, unemployment, diseases and epidemics, as well as seemingly perpetual depletion of natural resources, amongst others, through adequate and globally-recognised developmental mechanisms such as sustainable development. This practise of observing development through the lens of sustainability became popular in the 1970s and 1980s, when researchers and economists noted the nexus between environmental well-being and the rate of economic progress. This was first recognised during the Stockholm Conference on Human Environment in 1972 and was later demonstrated in the Brundtland Report's findings in 1987. This dissertation reflects on the new African Continental Free Trade Agreement (AfCFTA) establishing the African Continental Free Trade Area, and its potential to promote sustainable development in the SADC through its Investment Protocol, and particularly through investment facilitation processes and strategies, in order to ultimately present a positive impact for socioeconomic and environmental development within the region. In its earliest chapters, the research unpacks the layered meanings of investment and sustainable development, as highlighted by the Salini case and scholarship of Melber and Southall, respectively, to create the context within which the discussion of SADC sustainability can occur through the AfCFTA. Furthermore, this nexus between investment and sustainable development is explored within the narrower lens of the AFCFTA and its specific Protocol on Investment and its position on sustainable development. The latter reveals that sustainable development lacks sufficient emphasis within the AfCFTA and this exposes both the crux of the problem statement of this minor dissertation, as well as the flaw of several modern Investment tools and protocols within the African investment framework. Lastly, this dissertation's brief view of the history of the SADC's perceptions and instruments for sustainable development in the region allows for a greater understanding of the foundations upon which the current AfCFTA is to advance sustainable development in the region. Moreover, this also presents the opportunity for a comparative exercise against international RECs such as the European Union and the recent economic structure formed by the United States-Mexico-Canada Agreement. These two are intentionally compared to the AfCFTA because of their direct references to the nexus between investment, the environment and sustainable development. Through this comparative analysis, the research displays not only the various strengths and shortcomings of the AfCFTA, but more importantly, the ways in which International Investment Agreements (IIAs) and instruments can be practically structured in order to promote sustainable development within a REC.
Open Access
An inquiry into 'The nature of capital': with special reference to C.I.R. versus Middelman
(1990) Niland, Christopher Barlow
Our Courts have, in many decisions stretching over decades, been faced with the problem of deciding whether the proceeds of the disposal of certain assets are revenue, or are of a capital nature. The assets which have given rise to the problem are those which one would normally consider to be capital in the hands of the taxpayer, but which may be held to have to have altered in character due to some action of the taxpayer, either by way of a change in the intention of the taxpayer regarding the asset in question, or by virtue of the method adopted by him in the disposal of the asset. The reported cases t dealing with this question arise mainly from the disposal of either shares or immovable property, although this has not always been the case. The principles involved in the inquiry remain the same, no matter what the nature of the asset is, but the application of those principles depends on a number of factors, including the nature of the asset, and of course, the circumstances of the taxpayer.
Open Access
An Investigation into the Legal Framework in South Africa Regulating the Protection of Indigenous Knowledge: Assessing the Efficacy of the Current and Proposed Legislation
(2023) Peek, Cailin; Nkomo, Marumo; Bradstreet Richard
For centuries, indigenous communities have survived the harshest of environments and conditions by living off the land and relying on valuable knowledge which has been passed down from generation to generation. This way of life and cultural practice has impacted, not only the lives and livelihoods of the communities from where the knowledge has originated, but it has also been instrumental and inspirational in the development of products and innovation in various economic sectors. This knowledge, which has been termed indigenous or traditional knowledge, has been used by developed and developing countries in a variety of ways and has been vital in bringing global awareness to issues such as the protection of biodiversity and sustainable use of natural resources. Indigenous knowledge is more than a farming practice or a tribal design, it is knowledge which is intrinsically linked to the spirit and identity of its people. Unfortunately, just as biodiversity and the world's natural resources have come under threat, so to, has indigenous knowledge. Across the globe, indigenous knowledge is being harvested from communities and used in a manner where the indigenous communities themselves have received little or no benefit. In many instances the indigenous communities have not authorised the use of their knowledge or it is used in a manner which is culturally offensive and harms the belief systems of these communities. This paper will focus on the importance of recognising and protecting the valuable resource which is indigenous knowledge. By examining the challenges faced at international and regional level with regard to the appropriate protection for indigenous knowledge and the instruments created by the South African government, this paper aims to address the debate on what an appropriate method of protection is, not only in the protection offered to indigenous knowledge, but by assessing which approach will be more compatible with certain regional instruments which have been proposed and implemented and further, which legislative framework will be more suitable once an international approach is adopted. While the recognition and protection of indigenous knowledge is of paramount importance, the way in which it is recognised and protected plays a role in how effective the protection will be. Aligning the protection offered in South Africa to proposed regional and international approaches will ensure a broader and more effective method of recognition and protection and will ensure that the objectives of protecting this resource are met. This paper will highlight the challenges and different approaches adopted in the South African legislation and offer an opinion on which approach will be more adaptable and aligned with future regional and international instruments created to recognise and protect indigenous knowledge.
Open Access
Analysing the decline of the usage of the Lloyd's Open Form Agreement (LOF) for a vessel in distress at sea
(2023) Makubalo, Pumla; Bradfield, Graham
The Lloyd's Open Form (LOF) standard form salvage contract emerged in the late 19th century and for about a century has, through its various revisions, been the most widely used international salvage contract worldwide. The latter part of the 20th century has seen a steady decline in its usage raising the question of whether there remains any role and place for it going into the future. A factor that has undoubtedly contributed to the decline in its usage is the enhanced safety of shipping during the course of the 20th century which has reduced the number of salvage opportunities. A further contributing factor to this decline has been the increasing number of instances of vessels being refused permission to seek refuge in coastal states' waters or harbours or being ordered out of those coastal waters, in either instance preventing any salvage of such vessels being successfully completed by bringing the vessel to safety, and the salvor from earning a salvage award. These instances have seen the increasing reliance on other forms of services contracts, such as towage contracts and wreck removal contracts, with fixed remuneration that is not earned on a no-cure, no-pay basis as is the case with LOF as with salvage contract generally, and this too has reduced the usage of LOF. These contracts also reduced the uncertainty with regard to the amount of the service providers remuneration that exists in the determination of salvage awards. The emergence of a range of standard form contracts in other parts of the world has provided competition for LOF within the international salvage contract marketplace, further contributing to the decline in its usage. Despite these developments, the LOF has survived through its ability to adapt to changing circumstances and maintain a place for itself, albeit reduced, going into the further, and its primary role and place in the marketplace going forward would seem to be in large-scale emergency salvage operations. The study also acknowledges the risks involved when salvors are entering perilous conditions where other mariners seek refuge, such as inclement weather or in waterways that other mariners are trained to avoid. Conditions such as the nature and size of the ship, its location, number of passengers, type of cargo, and political ramifications make each casualty operation unique and distinctive. It is acknowledged that the development of ship designs and the implementation of operating safety requirements has reduced prospects for salvage, which have been steadily declining, however the continuous usage of LOF is still important since it continues to be the salvage contract of choice in situations of time-sensitive emergencies at sea. Despite technological advancements, the LOF has evolved and responded to the new environment admirably. Additionally, the LOF has been able to allow for ongoing revisions as a result of difficulties brought on by international events, environmental issues, and arbitrator difficulties. Most significantly, it has demonstrated the ability to adapt to change as it occurs.
Open Access
An analysis of section 86(10) of the National Credit Act no. 32 of 2005
(2015) Mwape, Bibiana Mwansa; Hutchison, Andrew
The financial sector in general is a difficult industry to regulate, as there is a need to balance the competing interests of the various stakeholders. Tampering with the cornerstone of the capitalist system naturally arouses diverging views and is often the subject of many debates as is evidenced by the debates surrounding the National Credit Act ('NCA'). Nonetheless, its regulation can be a weapon to fight against poverty and inequality as evidenced by the purposes of the NCA. The object of this research is to analyse the law on debt review, focusing on the credit provider's right contained in s 86(10) of the NCA to terminate the debt review process.

Browsing by Subject "Commercial Law"

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